P. v. Mazur

Filed 11/21/23; REVIEW GRANTED. See Cal. Rules of Court, rules 8.1105 and 8.1115 (and
corresponding Comment, par. 2, concerning rule 8.1115(e)(3)).
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW SAM MAZUR,
Defendant and Appellant.
D081331
(Super. Ct. No. SCD261283)
APPEAL from a judgment of the Superior Court of San Diego County,
Laura W. Halgren, Judge. Affirmed.
Thomas E. Robertson for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel
Rogers and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and
Respondent.
Matthew Sam Mazur appeals from his third sentencing for multiple
criminal offenses arising out of a fraudulent investment scheme. The sole
issue Mazur raises in this appeal from a reduced 23-year prison sentence is
that the trial court erred by refusing to dismiss a five-year white-collar
enhancement for loss greater than $500,000. (Pen. Code, § 186.11, subd.

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(a)(2).)1 Mazur argues that the trial court was required to dismiss this
enhancement because its imposition “result[ed] in a sentence of greater than
20 years.” (§ 1385, subd. (c)(2)(C).) We find no error and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND 2
In 2017, a jury found Mazur guilty of 35 offenses against multiple
victims, including multiple counts of grand theft and securities fraud, based
on his perpetration of a fraudulent investment scheme over many years.
(In re Mazur, supra, 81 Cal.App.5th at pp. 206–207). Specifically, “Mazur
and his co-defendant defrauded investors of millions of dollars by
misrepresenting the success of a medical device company that they owned.”
(Id. at p. 206.) The jury also found multiple enhancements to be true,
including an on-bail enhancement (§ 12022.1, subd. (b)) and a white-collar
enhancement for loss greater than $500,000 (§ 186.11, subd. (a)(2)).
(People v. Mazur, supra, D073268.)
After the trial court sentenced Mazur to 35 years eight months in
prison, this court reversed two of his convictions and remanded the matter for
resentencing. (People v. Mazur, supra, D073268.) On remand, the trial court
resentenced Mazur to 27 years in prison. In a subsequent habeas proceeding,
however, we struck the on-bail enhancement and again remanded for
resentencing. (In re Mazur, supra, 81 Cal.App.5th at pp. 214–215.)
1 Undesignated statutory references are to the Penal Code.
2 Rather than restate the entire factual and procedural background of
the case, we will assume familiarity with our prior opinions from Mazur’s
first appeal and his petition for writ of habeas corpus. (People v. Mazur
(Nov. 19, 2019, D073268) [nonpub. opn.]; In re Mazur (2022) 81 Cal.App.5th
203.)

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At the third sentencing, the court imposed a total sentence of 23 years
in prison, including a five-year term for the white-collar enhancement. The
trial court rejected Mazur’s argument that newly enacted Senate Bill No. 81
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) required dismissal of the
white-collar enhancement because it would “result in a sentence of greater
than 20 years.” (§ 1385, subd. (c)(2)(C).) The court acknowledged that “the
white-collar crime enhancement does carry the sentence over the 20-year
mark” and “the Court is to give great weight to that,” but still concluded that
it was not “in the interest of justice to strike that enhancement.” The court
explained that even under Senate Bill No. 81’s amendments to section 1385,
“any action the Court does [must be] in the interest of justice.” The court
further explained:
“I also need to look at the entirety of the case. And . . . I
can’t eliminate from my mind the extreme distress and
distraught nature of the victims in this case and how the
frauds, on some of them in particular, destroyed their lives
and their families’ lives.
“There were some victims who took it in stride. They had
financial wherewithal and they could just move on from
their mistake. But there were others, [R.B.] . . . who then
convinced other family members to invest. This was a
situation that devastated her.
“Mr. [P], who was blind and 95, I believe, that was such an
extreme act towards such an elderly person and caused
great emotional distress to his daughter.
“When I look at all of the victims and look at the amount of
taking and recognize that at the end of the day, the actual
sentence for each of the individual victims is quite small.
The only reason that the sentence is large is because there
were so many of them.

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“And the white-collar crime enhancement exists to show, I
think, that an additional punishment is appropriate
because of the great taking, which isn’t really represented
by just the number of victims.
“So I do not find that it is in the interest of justice to strike
that enhancement, even taking into account Mr. Mazur’s
obvious poor health.”
DISCUSSION
On appeal, Mazur does not argue that the trial court abused its
discretion by finding that dismissal of the white-collar enhancement was not
in the interest of justice. Mazur nevertheless argues that the trial court was
required to dismiss the enhancement under section 1385, subdivision (c)(2)(C)
because it resulted in a sentence of over 20 years and the trial court did not
find that dismissal would endanger public safety.
“For all criminal sentencings after January 1, 2022, our Legislature in
Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) has
provided direction on how trial courts are to exercise their discretion in
deciding whether to dismiss sentencing enhancements.” (People v. Walker
(2022) 86 Cal.App.5th 386, 391, review granted March 22, 2023, S278309
(Walker).) 3 Specifically, section 1385, subdivision (c)(1) now provides that
3 In its order granting review in Walker, the Supreme Court stated that
the Court of Appeal’s opinion could still be cited for its persuasive value while
review was pending. (People v. Walker, order granting review issued
March 22, 2023, S278309.) The high court limited the issue to be briefed and
argued to the following: “Does the amendment to Penal Code section 1385,
subdivision (c) that requires trial courts to ‘afford great weight’ to
enumerated mitigating circumstances (Stats. 2021, ch. 721) create a
rebuttable presumption in favor of dismissing an enhancement unless the
court finds dismissal would endanger public safety?” (Ibid.) The Supreme
Court also granted review of another published case that had disagreed with
Walker on the rebuttable presumption issue. (People v. Ortiz (2023) 87

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“the court shall dismiss an enhancement if it is in the furtherance of justice
to do so,” and subdivision (c)(2) states that “[i]n exercising its discretion
under this subdivision, the court shall consider and afford great weight to
evidence” of nine listed “mitigating circumstances,” any “one or more” of
which “weighs greatly in favor of dismissing the enhancement, unless the
court finds that dismissal of the enhancement would endanger public safety.”
Subdivision (c)(3) further provides: “While the court may exercise its
discretion at sentencing, this subdivision does not prevent a court from
exercising its discretion before, during, or after trial or entry of plea.”
The nine listed “mitigating circumstances” include factors such as
mental illness, prior victimization, childhood trauma, use of an inoperable or
unloaded firearm, the defendant’s status as a juvenile, and the use of a prior
conviction that is over five years old. (§ 1385, subd. (c)(2)(A)-(I).) Two of the
mitigating circumstances include “shall be dismissed” language. Subdivision
(c)(2)(B), which Mazur does not rely on here, states: “Multiple enhancements
are alleged in a single case. In this instance, all enhancements beyond a
single enhancement shall be dismissed.” (Italics added.) Subdivision
(c)(2)(C), the one Mazur does invoke, states: “The application of an
enhancement could result in a sentence of over 20 years. In this instance, the
enhancement shall be dismissed.” (Italics added.)
Mazur expressly disclaims any argument that the “shall be dismissed”
language of subdivisions (c)(2)(B) and (c)(2)(C) requires dismissal in every
case in which an enhancement results in a total sentence of over 20 years or
multiple enhancements are alleged. Other California courts have
Cal.App.5th 1087, 1097–1098, review granted April 12, 2023, S278894
(Ortiz).) The issue now pending before the Supreme Court in these cases is
not relevant here because neither side has argued that the statute creates a
rebuttable presumption.

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consistently rejected this mandatory dismissal argument in construing the
“shall be dismissed” language of subdivisions (c)(2)(B) and (c)(2)(C). (See
People v. Mendoza (2023) 88 Cal.App.5th 287, 290–293; People v. Anderson
(2023) 88 Cal.App.5th 233, 238–240, review granted April 19, 2023, S278786
(Anderson); People v. Lipscomb (2022) 87 Cal.App.5th 9, 15–21 (Lipscomb);
Walker, supra, 86 Cal.App.5th at pp. 391, 395–398, review granted.) We
agree with the reasoning of these cases on this point.
Mazur instead argues that dismissal is required whenever either
subdivision (c)(2)(B) or subdivision (c)(2)(C) applies and the trial court does
not find that dismissal would endanger public safety. According to Mazur,
dismissal of the white-collar enhancement was mandatory here because the
trial court did not find that it would endanger public safety. In response,
however, the People argue that a court is only required to dismiss an
enhancement under section 1385, subdivision (c) when it finds that it is in
furtherance of justice to do so—and the trial court here expressly determined
that it was not. According to the People, even when a subdivision (c)(2)(B) or
(c)(2)(C) mitigating circumstance applies, the statute only requires the court
to give it “great weight” in making a discretionary determination whether
dismissal is in furtherance of justice, just as the trial court did here. (§ 1385,
subd. (c)(2).)
We agree with the People. As our sister courts have concluded, the
statutory phrase “shall be dismissed” in section 1385, subdivisions (c)(2)(B)
and (c)(2)(C) cannot be read in isolation. (Anderson, supra, 88 Cal.App.5th at
p. 239, review granted; Lipscomb, supra, 87 Cal.App.5th at p. 18; Walker,
supra, 86 Cal.App.5th at p. 396, review granted.) Construed as a whole, the
statute makes clear that all the mitigating circumstances listed in
subdivision (c)(2) merely guide the court’s discretion in determining whether

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a dismissal is in furtherance of justice. Subdivision (c)(1) first sets forth the
controlling “furtherance of justice” standard for dismissal. Subdivision (c)(2)
then states that the court must give great weight to the presence of any one
or more of the nine listed mitigating circumstances “[i]n exercising its
discretion” whether to dismiss. Subdivision (c)(3) confirms the discretionary
nature of this decision by stating that the court “may exercise its discretion at
sentencing” but is not prevented “from exercising its discretion” earlier in the
proceedings. We therefore conclude that the “shall be dismissed” language of
the mitigating circumstances in subdivisions (c)(2)(B) and (c)(2)(C)—read in
the context of the statute as a whole—only requires the court to dismiss the
enhancement if it first finds that dismissal is “in the furtherance of justice.”
(§ 1385, subd. (c)(1).)
The statutory language does not support Mazur’s argument that
dismissal is mandatory under subdivision (c)(2)(B) or (c)(2)(C) whenever the
court makes no finding that it would endanger public safety. By its terms,
the “endanger public safety” language pertains only to the weight a trial court
must give to the mitigating circumstances. Subdivision (c)(2) states that,
absent a finding that dismissal “would endanger public safety,” the presence
of any “one or more” of the listed mitigating circumstances “weighs greatly”
in favor of dismissal. (§ 1385, subd. (c)(2).) Conversely, if the court finds that
dismissal would endanger public safety, then it need not give great weight to
the presence of any mitigating circumstance. In either case, however, the
court must apply the controlling “furtherance of justice” standard. (§ 1385,
subd. (c)(1).) By Mazur’s reasoning, we would have to construe the phrase
“weighs greatly” to mean “weigh[s] dispositively” for the two mitigating
circumstances listed in subdivisions (c)(2)(B) and (c)(2)(C), but not for the
other seven mitigating circumstances. (Walker, supra, 86 Cal.App.5th at

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p. 397, review granted.) “But that is not what the statute says, and we are
not allowed to rewrite the statute.” (Ibid.)
“As the plain text of section 1385 repeatedly emphasizes, its purpose is
to grant trial court discretion to dismiss enhancements. And the purpose of
Senate Bill No. 81, as reflected in the Legislative Digest, is to encourage
exercise of that discretion by making dismissal mandatory if it is in the
furtherance of justice to do so.” (Walker, supra, 86 Cal.App.5th at p. 397,
review granted (second italics added); see Legis. Counsel’s Dig., Sen. Bill
No. 81, Stats. 2021, ch. 721 (2021-2022 Reg. Sess.).) “In other words, the
dismissal of the enhancement is conditioned on the court’s finding dismissal
is in the interest of justice.” (Anderson, supra, 88 Cal.App.5th at p. 239,
review granted.) “[T]he ultimate question before the trial court remains
whether it is in the furtherance of justice to dismiss an enhancement.”
(Ortiz, supra, 87 Cal.App.5th at p. 1098, review granted; see also People v.
Ponder (Oct. 26, 2023, A166053) __ Cal.App.5th __, __ [2023 Cal.App. Lexis
839, at p. *16] [“[W]e reject defendant’s argument that section 1385(c)(2)
requires dismissal of an enhancement when a mitigating circumstance is
present unless the sentencing court finds dismissal would endanger public
safety. Instead, we agree with Ortiz that the court retains discretion under
section 1385(c)(2) to choose not to dismiss the enhancement in the
furtherance of justice for reasons other than public safety.”].)
We therefore reject Mazur’s contention that dismissal of an
enhancement can be mandatory under section 1385, subdivision (c) even
when the court finds that it is not in furtherance of justice. The trial court
must find that any dismissal under subdivision (c) is in “furtherance of
justice.” (§ 1385, subd. (c)(1).) The “endanger public safety” language applies
only as an exception to the requirement that the court must give “great

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weight” to the presence of any mitigating circumstance. (§ 1385, subd. (c)(2).)
But the controlling “furtherance of justice” standard is broader and allows
the court to consider factors beyond public safety in exercising its discretion
whether to dismiss an enhancement, including the nature and circumstances
of the crimes and the defendant’s background, character, and prospects. (See
People v. Williams (1998) 17 Cal.4th 148, 161 [applying “furtherance of
justice” standard for dismissal of strike prior under section 1385, subdivision
(a)].)
Finally, we note that the “shall be dismissed” language of subdivisions
(c)(2)(B) and (c)(2)(C) has a logical meaning other than to override the
controlling “furtherance of justice” standard. In the case of multiple
enhancements alleged in a single case, the statute specifies that if the trial
court finds dismissal is in furtherance of justice, then “all enhancements
beyond a single enhancement shall be dismissed.” (§ 1385, subd. (c)(2)(b).)
This language clarifies that the trial court must leave one and only one
enhancement in place if it exercises its discretion to dismiss under this
provision. And for any enhancement that could result in a sentence over 20
years, the statute states that “the enhancement shall be dismissed.” (§ 1385,
subd. (c)(2)(C).) This language clarifies that the court must dismiss the
charged enhancement if it exercises its discretion to do so, and it cannot
simply strike the punishment or the portion of the punishment that would
result in a sentence over 20 years. Thus, our interpretation of the statute
does not render meaningless the “shall be dismissed” language of either of
these subdivisions.
Because the trial court explicitly found that dismissal was not in the
interest of justice, and Mazur does not contest that finding, he has failed to

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demonstrate any error in the court’s refusal to dismiss the white-collar
enhancement.
DISPOSITION
The judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
IRION, Acting P.J.
DO, J.

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